No. 19701-8-III.The Court of Appeals of Washington, Division Three. Panel Seven.
Filed: April 16, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Ferry County, No. 001000219, Hon. Larry M. Kristianson, November 7, 2000, Judgment or order under review.
Counsel for Appellant(s), John A. Troberg, Attorney At Law, 358 E Birch Ave Ste 201, Colville, WA 99114.
Counsel for Respondent(s), Stephen T. Graham, 350 E Delaware #11, Republic, WA 99166.
Cheryl Taylor, 350 E Deleware #11, Republic, WA 99166.
KENNETH H. KATO, A.C.J.
Francis Cota was convicted of first degree murder and two counts of attempted first degree murder, all while armed with a firearm, and second degree arson. Claiming the court erred by excluding evidence of a potential suspect and by admitting hearsay, he appeals. Mr. Cota also contends he was denied effective assistance of counsel and the evidence was insufficient to support his convictions. We affirm. On June 13, 2000, Clinton and Kimberly Fritchman were at home with Ms. Fritchman’s uncle, Bob Faulkner, working on some cars. Mr. Cota came over with Louis Fletcher. The group drank some beers.
Mr. Cota and Mr. Fletcher left; Mr. Cota later returned alone. He grabbed the Fritchmans’ dog by the mouth, causing it to whine. Mr. Faulkner got upset and a fight ensued. Mr. Fritchman pulled the men apart. Mr. Cota went away angry. He returned and told Mr. Faulkner to `watch his back and his house.’ Report of Proceedings (RP) at 48. Mr. Cota left again.
Returning once more, Mr. Cota fired shots toward the house. Mr. Fritchman was shot in the face; Ms. Fritchman was shot in the face and back. Mr. Faulkner was shot in the head and died. Ms. Fritchman ran for help and came upon Janine Cloutier, a neighbor and local emergency medical technician. When Ms. Fritchman told her what had happened, Ms. Cloutier had her husband, who was in a pickup behind her car, call 911. While waiting for the ambulance, Ms. Fritchman and Ms. Cloutier noticed Mr. Faulkner’s house was on fire. Mr. Cloutier also saw the fire and went up the hill to check on Mr. Faulkner’s house. On his way down, he ran into Mr. Fritchman. An ambulance took the Fritchmans to the hospital.
Not surprisingly, Mr. Cota had a different recollection of the events that day. He admitted being at the Fritchmans’ house and drinking a few beers. He said he left with Mr. Fletcher to go up Vulcan Mountain to look for Mr. Cota’s son. They were there for a few hours. Mr. Cota later returned from the mountain alone and went home. Unable to find his son in a camper in a field by his home, Mr. Cota drove farther up the road, whereupon his car broke down. He then walked back down to the camper and went to sleep. When he woke up, he walked home and went to bed. The police surrounded his house and he was arrested. He denied shooting anyone.
The State charged Mr. Cota with first and/or second degree murder for the premeditated death of Robert Faulkner or, in the alternative, for causing the death of Robert Faulkner in the course of a second degree assault, both alternatives while armed with a firearm; two counts of attempted first degree murder while armed with a firearm; and second degree arson.
The jury found Mr. Cota guilty of first degree murder with a firearm, two counts of attempted first degree murder with a firearm, and second degree arson. The court sentenced him to a total of 840 months: 360 months for the murder conviction, 240 months for each of the attempted murder convictions, and 3 months for the arson conviction. The murder and the attempted murder sentences were to run consecutively. The arson sentence was concurrent with the others. This appeal follows. Before trial, the State moved to exclude any testimony that a Joseph Ryncarz actually committed these crimes. A witness could testify that Mr. Ryncarz threatened the Fritchmans and had a weapon similar to the one used in the shootings. The Fritchmans had been informants in a case that led to the arrest of Mr. Ryncarz, who threatened to get back at those who had turned him in, including the Fritchmans. Finding the evidence of another suspect inadmissible, the court granted the State’s motion.
At trial, Mr. Cota nonetheless sought to introduce evidence that Mr. Ryncarz had committed these crimes. Another witness had seen someone threatening the Fritchmans two or three days prior to the shooting and could describe the individual and his vehicle. The court denied this attempt as well. Mr. Cota claims the court erred by excluding evidence of this other suspect. Criminal defendants have a constitutional right to present all admissible evidence in their defense. State v. Clark, 78 Wn. App. 471, 477, 898 P.2d 854, review denied, 128 Wn.2d 1004
(1995). Whether or not evidence is admissible is a matter within the sound discretion of the trial court. Id.
The constitutional right to present a defense is not unfettered. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), cert. denied, 508 U.S. 953 (1993). Evidence offered only to encourage the jury to speculate as to possible other assailants is inadmissible. See State v. Drummer, 54 Wn. App. 751, 755, 775 P.2d 981 (1989). In order for the evidence implicating another suspect to be admissible, the defense must establish a clear nexus between the third person and the crime. State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993), review denied, 123 Wn.2d 1031 (1994). Mere evidence of motive, or motive coupled with threats by another person, is not admissible unless there is evidence connecting the person with the actual commission of the crime charged. State v. Russell, 125 Wn.2d 24, 77, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995); Clark, 78 Wn. App. at 478.
Mr. Cota offered evidence showing, he claimed, that Mr. Ryncarz committed these crimes. But this evidence did not connect Mr. Ryncarz with the actual crime. The evidence did nothing more than establish a possible motive for Mr. Ryncarz. Because Mr. Cota did not make the required connection between the other suspect and the crimes, the court properly excluded this evidence. Mr. Cota next claims the court improperly admitted hearsay statements. The State made a pretrial motion to admit as excited utterances the hearsay statements of the Fritchmans identifying Mr. Cota as the shooter. The defense argued the Fritchmans’ statements were not excited utterances. While the court noted the statements would likely qualify as excited utterances, it reserved ruling on the issue until it heard the foundational testimony. At trial, the hearsay statements were admitted without objection.
The hearsay rule generally excludes an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c); ER 802. However, such a statement may be admitted if it `relate[s] to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.’ ER 803(a)(2). An excited utterance is a spontaneous statement made while the declarant is under the influence of a physical shock, before he or she has had `time to calm down enough to make a calculated statement based on self-interest.’ State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997). An excited utterance is admissible `if (1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the event or condition.’ State v. Davis, 141 Wn.2d 798, 843, 10 P.3d 977
(2000); ER 803(a)(2). Admission of a hearsay statement is reviewed for an abuse of discretion. Davis, 141 Wn.2d at 841.
Here, the first and third elements are met. The Fritchmans were shot and saw the shooting of Mr. Faulkner. This was a startling event. Their statements were related to the shooting.
The critical issue is whether the declarants were under sufficient stress from the incident so that they did not have the ability to reflect upon the details and fabricate a story, if so motivated. State v. Sims, 77 Wn. App. 236, 238, 890 P.2d 521 (1995). This is a highly factual inquiry. Id.
Ms. Cloutier testified that Ms. Fritchman told her that Mr. Cota was the shooter. At this time, Ms. Fritchman had blood coming out of her mouth. But when asked if Ms. Fritchman seemed to be stressed, Ms. Cloutier replied `no, not for — No.’ RP at 127. These facts do not establish that Ms. Fritchman was under the stress of the shooting when she identified Mr. Cota as the shooter. The State asks us to infer that she was in stress from being shot, but the proper foundation for making that inference must nevertheless be made. It was not. Accordingly, her statements did not qualify as excited utterances.
Ms. Cloutier also testified that Mr. Fritchman told her Mr. Cota was the shooter. However, she gave no testimony as to Mr. Fritchman’s state of mind or stress level when he made the statement. There was thus no foundation for the statement to be admitted as an excited utterance.
Mr. Cloutier testified that both Mr. and Ms. Fritchman said Mr. Cota had shot them. But he also did not give any testimony regarding their respective states of mind or stress level. Again, the lack of facts laying the foundation that both Fritchmans were under stress at the time of their respective statements precludes their admission as an excited utterance.
Four other people testified that they somehow heard Mr. or Ms. Fritchman claim that Mr. Cota was the shooter. Because none of them indicated that either Fritchman appeared stressed, their testimony was likewise inadmissible.
Although the hearsay statements were not admissible, the error was nonetheless harmless. Error in the admission of evidence is harmless when other evidence establishes the same facts. Feldmiller v. Olson, 75 Wn.2d 322, 325, 450 P.2d 816 (1969). Both Mr. and Ms. Fritchman testified at trial that they were certain it was Mr. Cota who shot them. Properly admitted evidence thus identified Mr. Cota as the shooter. The error in admitting the hearsay testimony was harmless in these circumstances. Mr. Cota next argues that he was denied effective assistance of counsel. To establish ineffective assistance of counsel, a defendant must show that his attorney’s performance was deficient and that he was prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). The first prong is met by showing that defense counsel’s performance was not reasonably effective under prevailing professional norms. The second prong is met by showing that, but for counsel’s errors, the result would have been different. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251
(1995).
Mr. Cota first claims counsel was ineffective for failing to object to the hearsay testimony of several witnesses identifying him as the shooter. As noted above, that testimony was inadmissible. Although defense counsel tried to get the court to exclude the testimony prior to trial, she did not object when the witnesses testified at trial. This was deficient performance.
But Mr. Cota cannot establish prejudice. The erroneous admission of this testimony was harmless. Therefore, counsel’s deficiency does not constitute ineffective assistance.
Pro se, Mr. Cota contends his counsel was ineffective for failing to introduce evidence that Mr. Ryncarz committed these crimes. Counsel, however, did attempt to introduce this evidence. The record does not support Mr. Cota’s contention. Mr. Cota also argues the evidence was insufficient to support his convictions. On a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). The court draws all reasonable inferences in the State’s favor and interprets them most strongly against the defendant. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977).
Mr. Cota was charged with second degree arson. A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire that damages a building. RCW 9A.48.030(1).
The evidence showed that Mr. Faulkner’s house burned down. Mr. Cota warned Mr. Faulkner to watch his house. Shortly after the shooting, witnesses noticed his house was on fire. Two witnesses saw oil had dripped on the road. The fire investigator could not determine the cause of the fire, but did notice an oily puddle in front of the Faulkner house. A detective noted an oil trail from the Fritchman house to the Faulkner house and then to the Cota house. Mr. Cota’s car leaked transmission fluid. Although circumstantial, the evidence and its reasonable inferences, when viewed in a light most favorable to the State, support the conviction. A rational trier of fact could have found the element of the crime beyond a reasonable doubt.
Mr. Cota further claims that the evidence was insufficient to support his murder and attempted murder convictions because the State did not prove he owned or had access to the gun used to commit these crimes. Possession of the gun used, however, is not an element of these crimes. The State did charge a firearm enhancement, but both Mr. and Ms. Fritchman testified they saw Mr. Cota armed with a gun and identified him as the shooter. The evidence was sufficient to support these convictions as well.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: SCHULTHEIS, J., KURTZ, J.